Govinda Menon, J.- The appellant, whose mother had filed a suit in forma pauperis against her husband’s brother for past and future maintenance at the rate of Rs. 100 per year to be made a charge on the family properties, was on her death brought on record as the legal representative of her mother in the trial Court. Both the lower Courts have dismissed the suit on the ground that the appellant’s mother’s claim for maintenance against her husband’s estate in the hands of the coparcener was a personal claim which does not survive to her legal representative on her death. The learned District Munsif relied upon a decision of Happell, J., in C.R.P. No. 675 of 1945 in which the facts were as follows.

A certain lady filed a suit against her husband for maintenance and while the suit was pending she died. But before her death she purported to assign her rights to past maintenance to her father, and on her death, the father filed an application to be brought on record as the legal representative of the daughter. The learned Judge held that the question of the original plaintiff’s right to maintenance was a personal right and since it was not a suit to recover an ascertained sum, a transfer of such a personal right could not be recognised in law. The claim of an unliquidated and unascertained amount due to a Hindu lady by way of maintenance could not be the subject of an assignment.

This judgment of Happell, J., has not been referred to by the learned District Judge. In his judgment the two cases cited before him, viz., Rangappa Aithala v. Shiva Aithala1and Rajah Lakshmi Devi Ammal v. Naganna Naidu2, were distinguished by the learned District Judge on the ground that they were cases where the claim was for a specific sum of money, already ascertained as the quantum of arrears.

Under the Mitakshara law it is clear that the wife of a member of a joint family, though a member of the family as such, is not a coparcener in any sense of the term. Her right to maintenance has therefore to be ascertained by a consideration of the rights which she has to it and the obligation which her husband, or husband’s coparceners, have to discharge. It is also well settled that the widow of an undivided coparcener is not entitled to claim from the survivor as maintenance more than the proceeds of the share which would have been allotted to her husband had there been a partition during his lifetime. What, therefore, is the nature of her right to maintenance in the share of her husband in the joint family property? The contention urged on behalf of the appellant is that according to Hindu law-givers, originally the wife and the husband had common ownership of property and her right to maintenance had to be traced to such ownership. It is by subsequent evolution that the ownership in the property has ceased to exist and in its place a maintenance right has been substituted. The nature of the claim is thus described in Apastamba’s Dharma-sutras, quoted at page 234 of Golapchandra Sarkar Sastri’s Hindu Law, 8th Edition:

“There is no partition (or separation) between husband and wife because from he taking of hand (i.e., marriage) companionship (or jointness, of husband and wife) in (religious) acts (is or dained); likewise in the fruits of (acts of) spiritual merit; and also in the ownership of wealth; since (Manu and other sages) do not declare (the commission of the offence of) theft, in the case of necessary gift (made by a wife, of her husband’s property).”

The exact expression is

From the fact that as a result of marriage it is stated that there is jointness in the ownership of wealth, the earlier Hindu law-givers contemplated the wife to have some kind of right in the property of her husband. The origin and nature of such a right can also be inferred from other passages in the same book, such as at page 271:

“The wife is declared to become co-owner of the husband from the time of their marriage”

and at page 278 where in dealing with woman’s rights the learne

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